SUBSIDIARY GUARANTY
This _______________ (this A Guaranty @ ), dated as of ______ __, 20___, by
and among the Guarantors identified as such on the signature page hereof (each, a A Guarantor @
and collectively, A Guarantors @ ), and _______________________, a __________ corporation,
individually and as agent (in such capacity, A Agent @ ) for itself and the lenders from time to
time signatory to the Credit Agreement hereinafter defined ( A Lenders @ ).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date hereof
by and among __________________, a ___________ corporation ( A Borrower @ ), Guarantors,
Agent and the Persons signatory thereto from time to time as Lenders (as from time to time
amended, restated, supplemented or otherwise modified, the A Credit Agreement @ ) Lenders
have agreed to make Loans to, and incur Letter of Credit Obligations for the benefit of,
Borrower.
WHEREAS, Guarantors are direct or indirect Subsidiaries of Borrower and as
such will derive direct and indirect economic benefits from the making of the Loans and other
financial accommodations provided to Borrower pursuant to the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to enter into the Credit
Agreement and other Loan Documents and to induce Lenders to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, Guarantors have agreed to
guarantee payment of the Obligations;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Lenders to provide the Loans and other financial
accommodations under the Credit Agreement, it is agreed as follows:
29880. DEFINITIONS .
Capitalized terms used herein shall have the meanings assigned to them in the
Credit Agreement, unless otherwise defined herein.
References to this A Guaranty @ shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits and schedules to any of
the foregoing, and shall refer to this Guaranty as the same may be in effect at the time such
reference becomes operative.
29881. THE GUARANTY .
Guaranty of Guaranteed Obligations of Borrower . Each Guarantor hereby jointly
and severally unconditionally guarantees to Agent and Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of the Obligations of Borrower (hereinafter the
A Guaranteed Obligations @ ). Guarantors agree that this Guaranty is a guaranty of payment and
performance and not of collection, and that their obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
the genuineness, validity, regularity, enforceability or any future
amendment of, or change in this Guaranty, any other Loan Document or any other agreement,
document or instrument to which any Credit Party and/or Guarantors are or may become a party;
the absence of any action to enforce this Guaranty or any other Loan
Document or the waiver or consent by Agent and/or Lenders with respect to any of the
provisions thereof;
the existence, value or condition of, or failure to perfect its Lien against,
any Collateral for the Guaranteed Obligations or any action, or the absence of any action, by
Agent in respect thereof (including, without limitation, the release of any such security);
the insolvency of any Credit Party; or
any other action or circumstances which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor,
it being agreed by each Guarantor that its obligations under this Guaranty shall not be discharged
until the Termination Date. Each Guarantor shall be regarded, and shall be in the same position,
as principal debtor with respect to the Guaranteed Obligations. Each Guarantor agrees that any
notice or directive given at any time to Agent which is inconsistent with the waiver in the
immediately preceding sentence shall be null and void and may be ignored by Agent and
Lenders, and, in addition, may not be pleaded or introduced as evidence in any litigation relating
to this Guaranty for the reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless Agent and Lenders have specifically agreed otherwise in
writing. It is agreed among each Guarantor, Agent and Lenders that the foregoing waivers are of
the essence of the transaction contemplated by the Loan Documents and that, but for this
Guaranty and such waivers, Agent and Lenders would decline to enter into the Credit
Agreement.
29881.1 Demand by Agent or Lenders . In addition to the terms of the Guaranty set forth
in Section 2.1 hereof, and in no manner imposing any limitation on such terms, it is expressly
understood and agreed that, if, at any time, the outstanding principal amount of the Guaranteed
Obligations under the Credit Agreement (including all accrued interest thereon) is declared to be
immediately due and payable, then Guarantors shall, without demand, pay to the holders of the
Guaranteed Obligations the entire outstanding Guaranteed Obligations due and owing to such
holders. Payment by Guarantors shall be made to Agent in immediately available Federal funds
to an account designated by Agent or at the address set forth herein for the giving of notice to
Agent or at any other address that may be specified in writing from time to time by Agent, and
shall be credited and applied to the Guaranteed Obligations.
Enforcement of Guaranty . In no event shall Agent have any obligation (although
it is entitled, at its option) to proceed against Borrower or any other Credit Party or any
Collateral pledged to secure Guaranteed Obligations before seeking satisfaction from any or all
of the Guarantors, and Agent may proceed, prior or subsequent to, or simultaneously with, the
enforcement of Agent = s rights hereunder, to exercise any right or remedy which it may have
against any Collateral, as a result of any Lien it may have as security for all or any portion of the
Guaranteed Obligations.
Waiver . In addition to the waivers contained in Section 2.1 hereof, Guarantors
waive, and agree that they shall not at any time insist upon, plead or in any manner whatever
claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of
assets or redemption laws, or exemption, whether now or at any time hereafter in force, which
may delay, prevent or otherwise affect the performance by Guarantors of their Guaranteed
Obligations under, or the enforcement by Agent or Lenders of, this Guaranty. Guarantors hereby
waive diligence, presentment and demand (whether for non - payment or protest or of acceptance,
maturity, extension of time, change in nature or form of the Guaranteed Obligations, acceptance
of further security, release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Guaranteed Obligations, notice of adverse change in any
Borrower = s financial condition or any other fact which might increase the risk to Guarantors)
with respect to any of the Guaranteed Obligations or all other demands whatsoever and waive
the benefit of all provisions of law which are or might be in conflict with the terms of this
Guaranty. Guarantors represent, warrant and jointly and severally agree that, as of the date of
this Guaranty, their obligations under this Guaranty are not subject to any offsets or defenses
against Agent or Lenders or any Credit Party of any kind. Guarantors further jointly and
severally agree that their obligations under this Guaranty shall not be subject to any
counterclaims, offsets or defenses against Agent or any Lender or against any Credit Party of
any kind that may arise in the future.
Benefit of Guaranty . The provisions of this Guaranty are for the benefit of Agent
and Lenders and their respective successors, transferees, endorsees and assigns, and nothing
herein contained shall impair, as between any Credit Party and Agent or Lenders, the obligations
of any Credit Party under the Loan Documents. In the event all or any part of the Guaranteed
Obligations are transferred, indorsed or assigned by Agent or any Lender to any Person or
Persons, any reference to A Agent @ or A Lender @ herein shall be deemed to refer equally to
such Person or Persons.
Modification of Guaranteed Obligations, Etc . Each Guarantor hereby
acknowledges and agrees that Agent and Lenders may at any time or from time to time, with or
without the consent of, or notice to, Guarantors or any of them:
change or extend the manner, place or terms of payment of, or renew or
alter all or any portion of, the Guaranteed Obligations;
take any action under or in respect of the Loan Documents in the exercise
of any remedy, power or privilege contained therein or available to it at law, equity or otherwise,
or waive or refrain from exercising any such remedies, powers or privileges;
amend or modify, in any manner whatsoever, the Loan Documents;
extend or waive the time for any Credit Party = s performance of, or
compliance with, any term, covenant or agreement on its part to be performed or observed under
the Loan Documents, or waive such performance or compliance or consent to a failure of, or
departure from, such performance or compliance;
take and hold Collateral for the payment of the Guaranteed Obligations
guaranteed hereby or sell, exchange, release, dispose of, or otherwise deal with, any property
pledged, mortgaged or conveyed, or in which Agent or Lenders have been granted a Lien, to
secure any Obligations;
release anyone who may be liable in any manner for the payment of any
amounts owed by Guarantors or any Credit Party to Agent or any Lender;
modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of any Guarantor or any Credit Party are
subordinated to the claims of Agent and Lenders; and/or
apply any sums by whomever paid or however realized to any amounts
owing by any Guarantor or any Credit Party to Agent or any Lender in such manner as Agent or
any Lender shall determine in its discretion;
and Agent and Lenders shall not incur any liability to Guarantors as a result thereof, and no such
action shall impair or release the Guaranteed Obligations of Guarantors or any of them under
this Guaranty.
29881.2 Reinstatement . This Guaranty shall remain in full force and effect and continue
to be effective should any petition be filed by or against any Credit Party or any Guarantor for
liquidation or reorganization, should any Credit Party or any Guarantor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee be appointed for
all or any significant part of such Credit Party = s or such Guarantor = s assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and performance of
the Guaranteed Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by Agent or any Lender, whether
as a A voidable preference @ , A fraudulent conveyance @ , or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, the Guaranteed Obligations shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Waiver of Subrogation, Etc . Notwithstanding anything to the contrary in this
Guaranty, or in any other Loan Document, each Guarantor hereby:
expressly and irrevocably waives, on behalf of itself and its successors and
assigns (including any surety), until the Termination Date any and all rights at law or in equity to
subrogation, to reimbursement, to exoneration, to contribution, to indemnification, to set off or
to any other rights that could accrue to a surety against a principal, to a guarantor against a
principal, to a guarantor against a maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the holder of any claim against
any Person, and which such Guarantor may have or hereafter acquire against any Credit Party in
connection with or as a result of such Guarantor = s execution, delivery and/or performance of
this Guaranty, or any other documents to which such Guarantor is a party or otherwise; and
acknowledges and agrees (i) that this waiver is intended to benefit Agent
and Lenders and shall not limit or otherwise effect any Guarantor = s liability hereunder or the
enforceability of this Guaranty, and (ii) that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set forth in this
Section 2.8 and their rights under this Section 2.8 shall survive payment in full of the
Guaranteed Obligations.
Election of Remedies . If Agent may, under applicable law, proceed to realize
benefits under any of the Loan Documents giving Agent and Lenders a Lien upon any Collateral
owned by any Credit Party, either by judicial foreclosure or by non - judicial sale or enforcement,
Agent may, at its sole option, determine which of such remedies or rights it may pursue without
affecting any of such rights and remedies under this Guaranty. If, in the exercise of any of its
rights and remedies, Agent shall forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against any Credit Party, whether because of any applicable laws pertaining
to A election of remedies @ or the like, Guarantors hereby consent to such action by Agent and
waive any claim based upon such action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which Guarantors might otherwise have had but for such
action by Agent. Any election of remedies which results in the denial or impairment of the right
of Agent to seek a deficiency judgment against any Credit Party shall not impair each
Guarantor = s obligation to pay the full amount of the Guaranteed Obligations. In the event
Agent shall bid at any foreclosure or trustee = s sale or at any private sale permitted by law or the
Loan Documents, Agent may bid all or less than the amount of the Guaranteed Obligations and
the amount of such bid need not be paid by Agent but shall be credited against the Guaranteed
Obligations. The amount of the successful bid at any such sale shall be conclusively deemed to
be the fair market value of the collateral and the difference between such bid amount and the
remaining balance of the Guaranteed Obligations shall be conclusively deemed to be the amount
of the Guaranteed Obligations guaranteed under this Guaranty, notwithstanding that any present
or future law or court decision or ruling may have the effect of reducing the amount of any
deficiency claim to which Agent and Lenders might otherwise be entitled but for such bidding at
any such sale.
Funds Transfers . If any Guarantor shall engage in any transaction as a result of
which Borrower is required to make a mandatory prepayment with respect to the Guaranteed
Obligations under the terms of the Credit Agreement (including any issuance or sale of such
Guarantor = s Stock or any sale of its assets), such Guarantor shall distribute to, or make a
contribution to the capital of, Borrower an amount equal to the mandatory prepayment required
under the terms of the Credit Agreement.
DELIVERIES .
In a form satisfactory to Agent, Guarantors shall deliver to Agent (with sufficient
copies for each Lender), concurrently with the execution of this Guaranty and the Credit
Agreement, the Loan Documents and other instruments, certificates and documents as are
required to be delivered by Guarantors to Agent under the Credit Agreement.
29882. REPRESENTATIONS AND WARRANTIES .
To induce Lenders to make the Loans and incur Letter of Credit Obligations
under the Credit Agreement, Guarantors jointly and severally make the representations and
warranties as to each Guarantor contained in the Credit Agreement, each of which is
incorporated herein by reference, and the following representations and warranties to Agent and
each Lender, each and all of which shall survive the execution and delivery of this Guaranty:
29882.30416 Corporate Existence; Compliance with Law . Each Guarantor (i) is a corporation
or general partnership duly organized, validly existing and in good standing (except to the extent
this concept does not apply to general partnerships) under the laws of its jurisdiction of
incorporation or organization; (ii)is, to the extent applicable, duly qualified to do business and is,
to the extent applicable, in good standing under the laws of each jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification; (iii) has the
requisite corporate or partnership power and authority and the legal right to own, pledge,
mortgage and operate its properties, to lease the property it operates under lease, and to conduct
its business as now, heretofore and proposed to be conducted; (iv) has all licenses, permits,
consents or approvals from or by, and has made all material filings with, and has given all
notices to, all Governmental Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct; (v) is in compliance with its charter and by - laws or
partnership agreement; and (vi) is in compliance with all applicable provisions of law, except
where the failure to comply, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
Corporate or Partnership Power; Authorization; Enforceable Guaranteed
Obligations . The execution, delivery and performance of this Guaranty and all other Loan
Documents and all instruments and documents to be delivered by each Guarantor hereunder and
under the Credit Agreement are within such Guarantor = s corporate or partnership power, have
been duly authorized by all necessary or proper corporate or partnership action, including the
consent of stockholders or partners where required, are not in contravention of any provision of
such Guarantor = s charter or by - laws or partnership agreement, do not violate any law or
regulation, or any order or decree of any Governmental Authority, do not conflict with or result
in the breach of, or constitute a default under, or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which any Guarantor is a party or by which any Guarantor or any of its property is
bound, do not result in the creation or imposition of any Lien upon any of the property of any
Guarantor, other than those in favor of Agent, for itself and the benefit of Lenders, and the same
do not require the consent or approval of any Governmental Authority or any other Person
except those referred to in Section 2.1(c) of the Credit Agreement, all of which have been duly
obtained, made or complied with prior to the Closing Date and except for FCC consent or
approval required for Lenders to exercise rights or remedies under the Loan Documents. On or
prior to the Closing Date, this Guaranty and each of the Loan Documents to which any
Guarantor is a party shall have been duly executed and delivered for the benefit of or on behalf
of such Guarantor, and each shall then constitute a legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms.
FURTHER ASSURANCES .
Each Guarantor agrees, upon the written request of Agent or any Lender, to
execute and deliver to Agent or such Lender, from time to time, any additional instruments or
documents reasonably considered necessary by Agent or such Lender to cause this Guaranty to
be, become or remain valid and effective in accordance with its terms.
29883. PAYMENTS FREE AND CLEAR OF TAXES .
All payments required to be made by each Guarantor hereunder shall be made to
Agent and Lenders free and clear of, and without deduction for, any and all present and future
Taxes. If any Guarantor shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder, (a) the sum payable shall be increased as much as shall be necessary so
that after making all required deductions (including deductions applicable to additional sums
payable under this Section 6 ) Agent or Lenders, as applicable, receive an amount equal to the
sum they would have received had no such deductions been made, (b) such Guarantor shall
make such deductions, and (c) such Guarantor shall pay the full amount deducted to the relevant
taxing or other authority in accordance with applicable law. Within thirty (30) days after the
date of any payment of Taxes, each applicable Guarantor shall furnish to Agent the original or a
certified copy of a receipt evidencing payment thereof. Each Guarantor shall jointly and
severally indemnify and, within ten (10) days of demand therefor, pay Agent and each Lender
for the full amount of Taxes (including any Taxes imposed by any jurisdiction on amounts
payable under this Section 6 ) paid by Agent or such Lender, as appropriate, and any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto, whether or
not such Taxes were correctly or legally asserted.
29884. OTHER TERMS .
Entire Agreement . This Guaranty, together with the other Loan Documents,
constitutes the entire agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements relating to a guaranty of the loans and advances under the Loan
Documents and/or the Guaranteed Obligations.
Headings . The headings in this Guaranty are for convenience of reference only
and are not part of the substance of this Guaranty.
Severability . Whenever possible, each provision of this Guaranty shall be
interpreted in such a manner to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
Notices . Whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communication shall or may be given to or served upon
any of the parties by any other party, or whenever any of the parties desires to give or serve upon
another any such communication with respect to this Guaranty, each such notice, demand,
request, consent, approval, declaration or other communication shall be given in the manner, and
deemed received, as provided for in the Credit Agreement.
Successors and Assigns . This Guaranty and all obligations of Guarantors
hereunder shall be binding upon the successors and assigns of each Guarantor (including a
debtor-in-possession on behalf of such Guarantor) and shall, together with the rights and
remedies of Agent, for itself and for the benefit of Lenders, hereunder, inure to the benefit of
Agent and Lenders, all future holders of any instrument evidencing any of the Obligations and
their respective successors and assigns. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument evidencing the
Obligations or any portion thereof or interest therein shall in any manner affect the rights of
Agent and Lenders hereunder. Guarantors may not assign, sell, hypothecate or otherwise
transfer any interest in or obligation under this Guaranty.
No Waiver; Cumulative Remedies; Amendments . Neither Agent nor any Lender
shall by any act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by Agent and then
only to the extent therein set forth. A waiver by Agent, for itself and the ratable benefit of
Lenders, of any right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have had on any future occasion. No failure
to exercise nor any delay in exercising on the part of Agent or any Lender, any right, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies hereunder provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law. None of the terms or provisions of this Guaranty may be waived,
altered, modified, supplemented or amended except by an instrument in writing, duly executed
by Agent and Guarantors.
Termination . This Guaranty is a continuing guaranty and shall remain in full
force and effect until the Termination Date. Upon payment and performance in full of the
Guaranteed Obligations, Agent shall deliver to Guarantors such documents as Guarantors may
reasonably request to evidence such termination.
Counterparts . This Guaranty may be executed in any number of counterparts,
each of which shall collectively and separately constitute one and the same agreement.
GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH GUARANTOR
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN EITHER________, ____________ OR ________, ________ SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG GUARANTORS, AGENT OR ANY LENDER PERTAINING TO
THIS GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED , THAT AGENT
AND GUARANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF _________, ________
OR _______, _____ AND, PROVIDED , FURTHER , THAT NOTHING IN THIS GUARANTY
SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT, FOR THE BENEFIT OF AGENT AND LENDERS. EACH
GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
EACH GUARANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
GUARANTOR AT THE ADDRESS SET FORTH ON SCHEDULE I HERETO AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
29884.1 WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE
AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), EACH
GUARANTOR AND AGENT DESIRES THAT DISPUTES ARISING HEREUNDER OR
RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE
LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OR ARBITRATION, EACH GUARANTOR AND AGENT
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
29884.2 Limitation on Guaranteed Obligations . Notwithstanding any provision herein
contained to the contrary, each Guarantor = s liability hereunder shall be limited to an amount not
to exceed as of any date of determination the greater of:
the net amount of all Loans and other extensions of credit (including
Letters of Credit) advanced under the Credit Agreement and directly or indirectly re-loaned or
otherwise transferred to, or incurred for the benefit of, such Guarantor, plus interest thereon at
the applicable rate specified in the Credit Agreement; or
the amount which could be claimed by the Agent and Lenders from such
Guarantor under this Guaranty without rendering such claim voidable or avoidable under Section
548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking
into account, among other things, such Guarantor = s right of contribution and indemnification
from each other Guarantor under Section 7.12 .
Contribution with Respect to Guaranteed Obligations .
To the extent that any Guarantor shall make a payment under this
Guaranty of all or any of the Guaranteed Obligations (a A Guarantor Payment @ ) which, taking
into account all other Guarantor Payments then previously or concurrently made by the other
Guarantors, exceeds the amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment
in the same proportion that such Guarantor = s A Allocable Amount @ (as defined below) (in
effect immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts
of all of Guarantors in effect immediately prior to the making of such Guarantor Payment, then ,
following indefeasible payment in full in cash of the Obligations and termination of the
Commitments, such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each of the other Guarantors for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
As of any date of determination, the A Allocable Amount @ of any
Guarantor shall be equal to the maximum amount of the claim which could then be recovered
from such Guarantor under this Guaranty without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
This Section 7.12 is intended only to define the relative rights of
Guarantors and nothing set forth in this Section 7.12 is intended to or shall impair the
obligations of Guarantors, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Guaranty.
The rights of the parties under this Section 7.12 shall be exercisable upon
the full and indefeasible payment of the Guaranteed Obligations and the termination of the
Credit Agreement and the other Loan Documents.
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of any Guarantor to which such contribution
and indemnification is owing.
SECURITY .
To secure payment of each Guarantor = s obligations under this Guaranty,
concurrently with the execution of this Guaranty, each Guarantor has entered into a Security
Agreement pursuant to which each Guarantor has granted to Agent for the benefit of Lenders a
security interest in substantially all of its personal property and has entered into a Pledge
Agreement pursuant to which each Guarantor has pledged all of the Stock of each of its
Subsidiaries to Agent for the benefit of Lenders.
29885. CREDIT AGREEMENT .
Each Guarantor agrees to perform, comply with and be bound by the covenants
contained in Sections 4, 5 and 6 of the Credit Agreement (which provisions are incorporated
herein by reference) as if each Guarantor were a Credit Party signatory to the Credit Agreement.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date first above written.
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_____________________________________
_____________________________________
_____________________________________
_____________________________________
By:____________________________________
Name: ________________________
Title: Executive Vice President
of each of the above companies
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY]
,
as Agent
By:_________________________________
Name: _______________________
Title: Duly Authorized Signatory
SCHEDULE I
